Law and Humanities
Published: 19 September 2022
The Repatriated Ibori Loot and the Claim of Ownership by the Federal Government and the Counter-Claim by the Delta State Government: On whose side is Law and Equity?
Kingsley Adeyi Omengala
Nigerian Law School
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Keywords: Restorative Justice and Criminal Cases
One of the Holy books has the record of the experience of a corrupt tax collector who, upon an encounter with the Savior, admitted to his guilt of the crime of corruption and offered to restore in four folds whatever he had taken unjustly from his victims as a demonstration of restorative justice. Justice is said to be a three-way traffic- justice for the defendant accused of a heinous crime; justice for the victim of the crime and finally justice for society at large. Justice served without a reflection of the interest of these three beneficiaries will fail to meet the minimum threshold. The recent signing of a Memorandum of Understanding (MoU) between the Attorney-General of the Federation for the Federal Government of Nigeria and the Officials of the British Government to pave the way for the legitimate repatriation of part of the funds looted but forfeited, upon his conviction in the UK, by James Ibori , a former Governor of Delta State, and his associates while in government, has generated so many comments from Lawyers, politicians, and analysts, all proffering various reasons why the funds, when repatriated, should either be held by the Federal Government or transferred to the Delta State Government. The validity of both arguments must derive legitimacy from the concept of ownership as recognized by law and equity as the highest interest or right a person can exercise, over anything capable of being owned, including resources. This right of ownership entitles the person, in whom it vests, the absolute power to utilize or apply the subject matter according to his or her whims and caprices, without any form of interference or hindrance from any quarters. It is in the light of the above that this paper seeks to add a perspective to the debate derived from the concept of ownership in law and equity.
Agom, A., Madaki,A., & Apinega, S.(2012). Economic Reform and Democratisation in Nigeria in O. Oyewo and E. Ojomo (Eds), Law, Democratisation and Social Change,( p.43 )( stating that ‘Nigeria’s public institutions, ranging from security to social institutions, are weak and thus incapable of fully meeting their mandates. Nigeria’s major challenge is one of building strong domestic institutions to support long-term economic growth and development. When domestic institutions are strong and functional, the impact of day-to-day political configuration on private[ and public]investments is less’)
At the global level there is the United Nations Convention against Corruption (UNCAC), which is a globally applicable anti-corruption treaty, Nigeria ratified this convention in December 2004. At the regional level there is the African Union Convention on Prevention and Combating Corruption (AUCPCC), Nigeria ratified this convention in September 2006. At the sub-regional level there is the Economic Community of West African States Protocol on the Fight against Corruption. ; See also, The Asset Tracing, Recovery and Management Regulation, 2019 (which created the Federal Government of Nigeria Asset Recovery Account, domiciled in the Central Bank of Nigeria). By the prescription of the Regulation all proceeds from the final forfeited assets should be paid into the said account.
Attorney- General, Rivers State v Attorney-General Akwa-Ibom State (2011)vol.196 LRCN p.23 at 54-55.
Bank of Industry Ltd v Ebenezer Obeya (2022) 4 NWLR(pt. 1821)p. 589, 612 .
Beatty v Guggenheim Exploration Co (1919)225 NY 380, 386
Edokwe, B (2021, March 18)Citing Ernest Ojukwu, ‘4.2 million: Prof Ojukwu, SAN Reveals Why Delta State Cannot Claim Ibori’s Loot’ available athttps://barristerng.com/ex-law-school-dg-prof-ojukwu-san-reveals-why-delta-state-cannot-claim-iboris-4-2-million-loot/
Edokwe, B. (2021, March 12) Citing Chukwudi Enebeli, Esq, ‘Three Reasons Why Federal Government Cannot Claim 4.2m Ibori Loot’ available at https://barristerng.com/three-reasons-why-fed-govt-cant-claim-4-2m-ibori-loot/
Falana, F.(2012, April 9) ‘ How FG Frustrated Ibori’s Trial in the Uk’< available at https://www.thisdaylive.com/index.php/2021/03/26/how-fg-frustrated-iboris-trial-in-the-uk/
Gardner S, (2003) An Introduction to the Law of Trusts, (2 edn ) p.13
Hon. Francis Aluu Oko v Hon. Attorney-General of Ebonyi State (2021) 14 NWLR 9pt.1795) 63 at 101..
Jones, R & Williams, G. (2010) GDL Equity and Trusts ( Pp 12-13)
Nairaland (2021,August 17) https://www.nairaland.com/333734/james-ibori-convicted-twice-theft
S. 31(4) EFCC Act, which provides, ‘The Attorney-General of the Federation may make rules or regulations for the disposal or sale of any property or assets forfeited pursuant to this Act’.
S.120(2) CFRN; Dadem. Y.Y. (2013). Managing Federal Finance: Constitutional Challenges of the Sovereign Investment Fund. Nigerian Law and Practice Journal, 12,(p 217).
S.44 (2) (b) CFRN, (which provide justification for compulsory acquisition of property by way of punishment, or forfeiture arising from any breach of law, civil or criminal).; S.30 Economic and Financial Crimes Commission( Establishment, etc) Act, 2004, which provides, ‘where a person is convicted of an offence under this Act, the Commission or any authorized officer shall apply to the court for the order of confiscation and forfeiture of the convicted person’s assets and properties acquired or obtained as a result of the crime subject to an interim order under this Act.
See for instance 31(3) EFCC Act, which provides: ‘ where any part of the property included in a final order is money in a bank account or in the possession of any person, the commission shall cause a copy of the order to be produced and served on the manager or any person in control of the head office or branch of the bank concerned and the manager or person shall forthwith pay over the money to the commission without any further assurance than this Act and the commission shall pay the money received into the Consolidated Revenue Account of the Federation’.
See S.43 of the 1999 constitution of the Federal Republic of Nigeria,1999 (hereinafter referred to as ‘CFRN’)
See the case of Attorney-General of Abia State &Ors v Attorney-General of the Federation (2002) 6 NWLR (pt.763) p.264 at 479-480 where the Supreme Court held: ‘The Constitution is what is called the groundnorm and the fundamental law of the land. All other legislations in the land take their hierarchy from the provisions of the constitution. By the provisions of the constitution, the laws made by the National Assembly come next to the constitution; followed by those made by the House of Assembly of a State. By virtue of section1(1) of the constitution, the provisions of the constitution take precedence over any law enacted by the National Assembly even though the National Assembly has the power to amend the constitution itself’.
See the various oaths provided for in the 7th schedule to the CFRN; see also the prescribed code of conduct for public officers contained in the 5th schedule to the CFRN; Sorace, D. and Torricelli, A. Monitoring and Guidance in the Administration of Public Contracts. In Noguellou, R. and Stelkens, U.(Eds) (2010) Comparative Law on Public Contracts (pp 212-213) cited in O. Oyewo, O. op cit n.3. pp 17-18; see also Ss. 88 and 128 CFRN.
Shivji, I.(1998).Problems of Constitution-Making as a Consensus-Building: The Tanzanian Experience. In O. Sichone (Ed), The State and Constitutionalism in Southern Africa (SAPS Books, Harare, 1998) cited in O. Oyewo, Law, Democratisation and Social Change in Nigeria, O. Oyewo and E. Ojomo (Eds),(2012) Law, Democratisation and Social Change’, NALT Conference Proceedings, 2012., p. 43 ( Stating that, ‘ [a] Constitution is usually the basic norm that establishes the organs and institutions of government, and thereby confers legitimacy on the exercise of governmental powers, establishes the organs and institutions of government, sets the scope and limits of governance and governmental powers, guarantees the basic fundamental rights of the citizens, and regulates the relationships between the organs and institutions of government among themselves, and with the citizens. The constitution is therefore not only the fons et origo for all other norms, but the “basic manual” for governmental exercise of powers in juxtaposition to the rights of the citizens, in a constitutional democracy. It is no longer just a “power map” of the society but also an instrument for addressing pressing social economic questions as well as “ embodiment of consensus and constitutionalism”)
The Guardian Newspaper ( 2012, April 17) Former Nigeria State Governor James Ibori Receives 13-year Sentence. < available at https://www.theguardian.com/global-development/2012/apr/17/nigeria-governor-james-ibori-sentenced> retrieved on 9 August 2022
The Guardian Newspaper (2009,December 18) Court Clears Ibori of Graft Charges, EFCC Kicks.< available at https://guardian.ng/news/nigeria/national/court-clears-ibori-of-graft-charges-efcc-kicks/> retrieved on 9 August 2022.
The Money Laundering (Prohibition) Act, 2011.; S. 46 Economic and Financial Crimes Commission Act, which defines ‘Economic and financial crimes’ as follows: ‘… the non-violent criminal and illicit activity committed with the objectives of earning wealth illegally either individually or in a group or organized manner thereby violating existing legislation governing the economic activities of government and its administration and includes any form of fraud, narcotic drug trafficking, money laundering, embezzlement, bribery, looting and any form of corrupt malpractices, illegal arms deal, smuggling, human trafficking and child labour, illegal oil bunkering and illegal mining, tax evasion, foreign exchange malpractices including counterfeiting of currency, theft of intellectual property and piracy, open market abuse, dumping of toxic wastes and prohibited good, etc.’ Independent Corrupt Practices Commission Act.
Unini C. (2021, March 10) 4.2m Repatriated From UK Belongs to Delta State Govt-Falana, SAN’, available at <https://thenigerialawyer.com/4.2m-repatriated-from-uk-belongs-to-delta-state-govt-falana-san/
Unini, C. (2021, June 16)‘ Delta Awaits 4.2m Ibori-Linked Loot, Lists Six Projects’ available at https://thenigerialawyer.com/delta-awaits-4-2m-ibori-linked-loot-lists-six-projects/ accessed on 16 June 2021
Webb, C & Akkough, T Trusts Laws, (Palgrave Macmillan, New York 2008) pp. 358-359.
Wikipedia. ( 2021, August 17) https://en.m.wikipedia.org/wiki/jamesibori